Works by Michael Steven Green

This article is a limited defense of copyrights for the contents of factual compilations. The form of protection that I propose, under which the collective factual content of such compilations is protected, differs from an approach that protects individual facts and from the currently accepted approach (as articulated in Feist v. Rural Telephone), under which only selections and arrangements of individual facts are protected. Although I accept that there are sound economic justifications for refusing to copyright individual facts, my justifications (...) differ from those that have traditionally been offered. The traditional justifications are: 1) that the monopolization costs of protecting individual facts are too great, because facts are too valuable as components for future works to have access to them limited by property rights, and 2) that facts fail the independent creation requirement for copyright protection, because they are not authored by anyone. Both of these justifications fail. Monopolization costs can at most justify limited terms for copyrights in facts. And, far from failing the independent creation requirement, facts (properly understood as representations of reality rather than reality itself) are as much works of authorship as novels are. I argue that transaction and enforcement costs are the real reasons that individual facts are not copyrightable. Furthermore, some components of factual works - specifically, ground breaking and explanatorily powerful theories like Einstein's theory of relativity - should be copyrightable if our sole concerns were transaction, enforcement and monopolization costs. Instead such theories are not protectable because any work that borrows them is their complement (in the sense that its production makes them more desirable), provided that the work acknowledges the theories' true provenance. This is because it is only through dissemination in other works that such theories can undergo the test of truth. But nothing about the uncopyrightability of the components of factual works stands in the way of copyrights for the collective factual content conveyed by such works. It might appear that protecting collective content is no different from the Feist approach, in which selections and arrangements of facts alone are protected. After all, collective factual content is created by selecting and arranging individual facts. If individual facts are not protected, then the selections and arrangements, it seems, must be. But this is a fallacy. Protecting a fictional story is not the same as protecting the methods of selection and arrangement used to generate the story from unprotected elements of character, plot, and setting. Likewise, protecting the collective factual content of a database is not the same as the Feist method. The collective content of databases, I argue, should be protected in the same manner that fictional stories are. Such an approach, far diverging from traditional copyright principles, follows from them. (shrink)

In District of Columbia v. Heller, the Supreme Court is anticipated to finally decide whether the Second Amendment is an individual or a collective right. This article is not about the textual and historical arguments on the basis of which the Court is likely to make its decision. My topic is more fundamental. Assuming that the Second Amendment protects an individual right, what purpose does it serve? What are the possible reasons that private arms possession is sufficiently valuable to deserve (...) constitutional protection? Because it was insufficiently sensitive to the variety of justifications available, the majority in Parker v. District of Columbia (the D.C. Circuit case appealed in Heller) failed to identify the purposes of the Second Amendment. The passing comments it made were compatible with a large number of very different justifications. Second Amendment advocates have also been surprisingly muddled on the issue. This confusion has gone unnoticed because no one has, until now, offered a philosophically rigorous account of the justifications available and the important distinctions between them. Clarity about the value of private arms possession is essential for determining the scope of the Second Amendment under an individual right interpretation - a project that lower courts will be forced to undertake if Parker is affirmed. Courts commonly interpret the scope of a constitutional right in light of the interests the right protects. For this reason, they need a clear conception of why individuals have an interest in private arms possession. I offer this article as a first, but crucial, step toward answering this question. (shrink)

Neste ensaio, argumento que qualquer um que adotasse um falsificacionismo do tipo que tenho atribuído a Nietzsche se sentiria atraído pela doutrina do eterno retorno. Para Nietzsche, pensar o 'vir a ser' revelado por meio dos sentidos significa falsificá-lo por meio do 'ser'. Mas o eterno retorno oferece a possibilidade de pensar o 'vir a ser' sem falsificação. Em seguida, argumento que qualquer um que mantenha o falsificacionismo de Nietzsche veria na ação humana um conflito entre o 'ser' e o (...) 'vir a ser', de modo semelhante ao que ocorre no juízo empírico. À luz desse conflito apenas o eterno retorno ofereceria a possibilidade de afirmar a vida de modo verdadeiro. Para concluir, discuto de que maneira tal leitura do eterno retorno resolve uma série de enigmas que têm atormentado os intérpretes. In this essay, I argue that someone who adopted a falsificationism of the sort that I have attributed to Nietzsche would be attracted to the doctrine of eternal recurrence. For Nietzsche, to think the becoming revealed through the senses means falsifying it through being. But the eternal recurrence offers the possibility of thinking becoming without falsification. I then argue that someone who held Nietzsche's falsificationism would see in human agency a conflict between being and becoming similar to that in empirical judgment. In the light of this conflict only the eternal recurrence would offer the possibility of truly affirming life. I end by discussing how this reading of the eternal recurrence solves a number of puzzles that have bedeviled interpreters. (shrink)

In this essay reviewing Brian Leiter’s recent book Naturalizing Jurisprudence, I focus on two positions that distinguish Leiter’s reading of the American legal realists from those offered in the past. The first is his claim that the realists thought the law is only locally indeterminate – primarily in cases that are appealed. The second is his claim that they did not offer a prediction theory of law, but were instead committed to a standard positivist theory. Leiter’s reading is vulnerable, because (...) he fails to discuss in detail those passages from the realists that inspired past interpretations. My goal is to see how Leiter’s reading fares when these passages are considered. I argue that Leiter is right that the realists’ indeterminacy thesis has only a local scope. Those passages that appear to claim that the law is globally indeterminate actually address three other topics: judicial supremacy, judges’ roles as finders of fact, and the moral obligation to adjudicate as the law commands. With respect to the prediction theory, however, I conclude that Leiter’s position cannot be defended. Indeed the realists offered two “prediction” theories of law. According to the first, which is best described as a decision theory, the law concerning an event is whatever concrete judgment a court will issue when the event is litigated. According to the second, the law is reduced, not to concrete judgments, but to regularities of judicial (and other official) behavior in a jurisdiction. I end this essay with the suggestion that the realists’ advocacy of the second prediction theory indirectly vindicates Leiter’s reading of the realists as prescient jurisprudential naturalists. (shrink)

In an article entitled ‘Dworkin's Fallacy, Or What the Philosophy of Language Can't Teach Us about the Law’, I argued that in Law's Empire Ronald Dworkin misderived his interpretive theory of law from an implicit interpretive theory of meaning, thereby committing ‘Dworkin's fallacy’. In his recent book, Justice in Robes, Dworkin denies that he committed the fallacy. As evidence he points to the fact that he considered three theories of law—‘conventionalism’, ‘pragmatism’ and ‘law as integrity’—in Law's Empire. Only the last (...) of these is interpretive, but each, he argues, is compatible with his interpretive theory of meaning, which he describes as the view that ‘the doctrinal concept of law is an interpretive concept’. In this Reply, I argue that Dworkin's argument that he does not commit Dworkin's fallacy is itself an example of the fallacy and that Dworkin's fallacy pervades Justice in Robes just as much as it did Law's Empire. (shrink)

Sometimes the fact that something is the law can be justified by the law. For example, the Sarbanes-Oxley Act is the law because it was enacted by Congress pursuant to the Commerce Clause. But eventually legal justification of law ends. The ultimate criteria of validity in a legal system cannot themselves be justified by law. According to H.L.A. Hart, justification of these ultimate criteria is still available, by reference to social facts concerning official acceptance - facts about what Hart calls (...) the "rule of recognition" for the system. -/- Drawing upon criticisms of sociological accounts of the law that can be found in the writings of Hans Kelsen, I argue in this essay that Hart's approach cannot account for statements about the law that assert the independence of legal validity from rule of recognition facts. I offer as an alternative a legal quietist approach, which can account for such statements. For the quietist, legal justification exhausts the possible justification for law. If our judgments about the law are fundamental, in the sense that they cannot be justified by other judgments about the law, then they have no justification (which is not to say that they should be abandoned). I argue that legal quietism is exemplified - if somewhat imperfectly - in Kelsen's writings, and I end the essay by exploring some difficulties that the quietist approach must face. (shrink)

The dissertation is an account of Nietzsche's denial of cognitive objectivity, that is, his denial that there can be such a thing as a true judgment. I claim that plausible arguments for denying cognitive objectivity can be found in Nietzsche, but only after some strong analogies between this denial and traditional arguments against evaluative objectivity are made apparent. Judgments of value are not considered objective because they are motivational, that is, because making an evaluative judgment is necessarily connected with having (...) motivating reasons for action. I examine two forms such a denial can take, the error theory in which judgments of value are considered cognitive but false, and noncognitivism, in which they are not considered cognitive at all, and so neither true nor false. Both the error theory and non-cognitivism occur in Nietzsche's own denials of evaluative objectivity. ;I claim that Nietzsche argued against cognitive objectivity because he considered all judgments to be motivational. Nietzsche is only able to do so, however, on the basis of a radical critique of the possibility of normativity or normative constraint. This critique plays a crucial role in Nietzsche's philosophy of mind. Such a critique puts into doubt the traditional picture of intentional action, in which a sharp distinction is drawn between cognitive and affective contributions to such action. ;Because Nietzsche argues all judgments are motivational, his epistemology bears a strong resemblance to both the error theory and non-cognitivism. But because Nietzsche's critique of normative constraint amounts to a denial of the existence of cognition, the elements of non-cognitivism in Nietzsche's epistemology are more fundamental than those of the error theory. I explain how Nietzsche's ontology of the will to power can be seen as following from his non-cognitivism, but suggest that Nietzsche's epistemology bears the greatest affinity to naturalism. (shrink)

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